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Consent in international arbitration - Coggle Diagram

- - - - However, this question, which may at first sight be deemed even more academic, does have a practical side. In fact, to abandon the characterisation “consensual” does not mean that parties’ consent could not be relevant to other aspects. Some of these aspects have just been mentioned. Furthermore, another issue which is often considered in order to put in doubt the existence of parties’ consent is the unequal bargaining power of the parties to the arbitration agreement. Therefore the process of concluding the arbitration agreement, particularly the forces and interests which are at stake in the process, but also the specific needs arising in arbitration areas other than commercial arbitration, will be analysed. Here the (substantive) validity of the arbitration agreement will be scrutinised
    - - On the one hand it seems that a differentiation has to be made because there are different types of arbitration. While commercial arbitration has been the traditional domain of arbitration, in the past decades other important fields of arbitration have appeared and developed. Not all of these new areas have the same features as“classical” commercial arbitration and the same “consensual intensity”. the structure of arbitrations can differ
        
        It ranges from bi-party situations to multiparty scenarios, which in their turn can be of a different nature
        
        From a horizontal type of arbitration to a vertical one
      - On the other hand, while the asserted consensual nature of arbitration is of relevance from the outset of a proceeding, and for this reason there are significant parts of the thesis devoted to analysing how consent to arbitration is given at the beginning, it also seems to be important to analyse whether the expectation of the consensual character of arbitration has to be upheld in equal measure throughout all phases of the arbitration process, or if there are other needs which, possibly, make it appear less important..
- - - - Common law lawyers and
        courts revere the contract is seen as the final expression of theparties’ intent, and, unless the document fails to express the parties’ basic agreement, the courts must not supplement or supplant it.
        
        Notwithstanding the existing differences among legal systems with regard to the understanding of the instrument of “contract”, with respect to international arbitration agreements another tendency can be observed: a move towards harmonisation and uniformity.
      - Conversely, lawyers trained in codified law have often seen the detail and complexity of contracts drafted by common law lawyers as unnecessary, counterproductive and lacking synthetic quality
  - - - Difference in interpretation of consent between commercial and investment arbitration
  - - - For some scholars the “origine volontaire de la mission de l’arbitre” is one of the essential criteria to qualify arbitration (Jarrosson, Frontières, p. 20)
      - For others, the classical concept of arbitration based on consent is being supplemented by other concepts of arbitration which largely ignore this requirement and they speak of the “dogma of consent” which should no longer be a justification for arbitration when consent is merely a fiction. (Kaufmann-Kohler/Peter, p. 186.)
      - In between these two positions, and considering in particular arbitration in the domain of the resolution of sport-related disputes, it has also been suggested that there should be a
        shift in the question of consent from the stage of qualification to the validity of the arbitration agreement. The advantage of such an approach is that, while the question of arbitration’s qualification has always to be examined ex officio, the validity of the arbitration agreement has only to be considered when it is contested by one of the parties involved in the dispute. (Rigozzi, para. 478)
        
        With regard to the consensual nature of arbitration, it has to be observed that with the growing acceptance of arbitration as a dispute resolution mechanism and its use in areas other than the traditional one of commercial arbitration, the consensual character of arbitration tends to decrease (p. 50)
        
        This is mainly due to the fact that the relationships between the parties in investment dispute arbitration and sport arbitration have another structure, when compared to commercial arbitration, with the consequence that the process of reaching an agreement to arbitrate appears to be different. The most extreme position is, however, represented by the case of mandatory arbitration, where arbitration is seen as such an accepted mechanism for dispute resolution that the State
        itself recognises that arbitration is the most sensible method to resolve disputes in a particular area of life and obliges the parties to make recourse to it.